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Department of Homeland Security's Non-Enforcement Policy

September 2010

The Obama Administration has further weakened already inadequate immigration enforcement in the interior of the country. This may be seen in four developments undertaken by agencies of the Department of Homeland Security (DHS).

First, DHS announced that it was revising 287(g) agreements with state and local authorities to limit their scope. Those agreements, identified by the Immigration and Nationality Act section that provides for them, provide for local law enforcement personnel to be trained by the Immigration and Customs Enforcement (ICE) agency and to be deputized to act as immigration law enforcement personnel. When illegal aliens are identified by the 287(g) deputized personnel they are put into the hands of ICE for deportation. Those partnerships had become a major source of DHS deportations more than 35,000 persons in the past two years. The revised agreements insisted on by ICE restrict the scope of the illegal aliens that ICE will accept for deportation to aliens convicted of serious felony offenses. In that way, the locally trained and deputized law enforcement personnel are put in the position of having to resume a practice of "catch and release" for any other illegal aliens. Following the initiative to restrict these agreements, some of the local jurisdictions decided to leave the program rather than accept the new limitation.

Second, the administration has virtually suspended worksite enforcement actions that apprehend illegal alien workers. It has instead substituted paper audits of the I-9 employment documents required for all new hires. This change has allowed ICE to continue to claim it is enforcing the law against employers of illegal aliens without arresting and deporting illegal workers. This practice simply identifies those employers who have not complied with the law in collecting and filing the I-9 information and those employers who have accepted fake documents. The government cannot prosecute employers for knowingly employing illegal workers unless it can be proven that the employer knew the workers presenting the fake documents were illegally in the country. This practice, billed by the Obama administration as "smart enforcement," is a radical departure from stepped-up enforcement during 2007 and 2008 when the worksite raids resulted in the apprehension of illegal workers who became a potential source of testimony regarding the hiring practices of their employers. This change in policy reduces the threat of prosecution and possible imprisonment against employers into a minor inconvenience of a monetary fine and the possible loss of services of the illegal alien employees identified as having used fake or stolen identity documents. Meanwhile, the illegal alien workers remain free to find other jobs.

Third, ICE has developed and codified a system of triage in which it prioritizes the aliens that it seeks to apprehend and deport. There is precedent for this triage in the policies of previous administrations, and there is reason to prioritize the removal of aliens who pose a danger to society. However, the implementation of the administration's current prioritization excessively limits enforcement against virtually all other immigration violators. All police forces practice some form of discretion in deploying their manpower and resources, but it would be unheard of for them to simply abandon enforcement against all but violent criminals, who account for less than 10 percent of all crimes recorded by the FBI. The memo by ICE director, John Morton is titled "Civil Immigration Enforcement: Priorities for the Apprehension, Detention and Removal of Aliens." While national security suspects and dangerous criminal aliens should be a priority for deportation, the ICE triage system ignores the importance of removing others who have broken the immigration law and preventing crimes before they happen. Comprehensive enforcement of the immigration law will encourage attrition, i.e., the voluntary departure of illegal aliens, and deter new illegal immigration an objective that runs contrary to the administration's political support for a sweeping amnesty.

Fourth, under pressure from advocates for illegal aliens, who charge that the Obama administration has failed to deliver the "comprehensive immigration reform" that candidate Obama promised, the administration has explored the options for providing amnesty on a case-by-case basis to illegal aliens. The document entitled "Administrative Alternatives to Comprehensive Immigration Reform" developed by the Citizenship and Immigration Services (USCIS) branch of the Department of Homeland Security outlines measures that may be taken by discretionary administrative action. These measures, if systematically adopted would constitute a major shift in immigration enforcement policy without congressional authorization. The document states that "…USCIS can extend benefits and/or protections to many individuals and groups by issuing new guidance and regulations, exercising discretion with regard to parole-in-place, deferred action and the issuance of Notices to Appear (NTA), and adopting significant process improvements." Among those identified as potential beneficiaries are thousands of illegal aliens who have benefited from grants of Temporary Protected Status. The memo suggests ignoring deportable aliens who have no basis for relief from deportation while issuing NTAs for those who do have grounds for relief. Another option raised in the memo is redefining the "extreme hardship" standard for approving suspension of deportation. The memo posits, "This would encourage many more [illegally resident] spouses, sons, and daughters of U.S. citizens and lawful permanent residents to seek relief without fear of removal." The administration dismissed this USCIS memo as a normal internal discussion of possibilities that has no status. The administration, tellingly, did not deny its interest in pursuing those actions. Recent well-publicized cases of reprieves against deportation of illegal alien youth indicate that in all probability, the administration has already adopted a policy along the lines suggested in the planning document for illegal alien youths who would benefit if the DREAM Act were enacted.

Fifth, despite the administration's attempt to downplay its planning for a "stealth" amnesty by executive discretion, a further memo from ICE director Morton issued on August 20, 2010 documents that these proposed benefits for illegal aliens are already being implemented. The latest memo instructs that as many as 17,000 ICE deportation cases should be fast-tracked in USCIS for dismissal of the deportation orders. All the beneficiaries need is to have a petition for relief from deportation, a petition from a U.S. citizen or legal resident family member and to not have a disqualifying criminal record. This action would not provide 'green cards' for the aliens, but it would mean they would no longer be subject to deportation and would be free to stay in the United States in the hope that a formal amnesty would eventually be adopted.

The weakening of the 287(g) program, the virtual suspension of worksite raids, the implementation of a diminished enforcement strategy through triage, and the increased refusal to deport illegal aliens are all aimed at weakening interior enforcement of the nation's immigration laws. These moves have been taken by ICE career employees as a slap in the face. The AFL-CIO affiliate National Council 118 of ICE employees issued a unanimously approved "vote of no confidence" in the director of ICE and the director of the DHS Office of Policy Planning on June 25, 2010. The union statement said, "This action reflects the growing dissatisfaction and concern among ICE employees and Union leaders that [the DHS directors] have abandoned the Agency's core mission…of providing for public safety, and have instead directed their attention to campaigning for programs and policies related to amnesty..."

The extent to which the administration will continue to pursue this non-enforcement strategy is likely to be limited only by the extent to which there is concerted opposition to these policies in Congress and the U.S. public.

See also Paving the Road to Amnesty which documents actions of the Obama Administration from day one to lay the groundwork for a mass amnesty.